Law must be alive to changing needs of our country
by Prasanna Jayawardena
The following is the text of the speech by Justice Prasanna Jayawardena, PC at the ceremonial sitting of the Supreme Court on June 28 to welcome him as a judge of the apex court
( July 10, 2016, Colombo, Sri Lanka Guardian) I am humbled by the approving manner in which the Bar has welcomed my appointment to this august Court and I assure you that I will always endeavour, to the best of my abilities, to fulfill my sacred duties as a Judge, without fear or favour. My aim will be to do Justice between man and man and man and State, remaining true to the Law and guided by my conscience. I will shun any considerations of race, religion, language, identity or status of parties or any other irrelevant factors.
It is with humility and reverence that I sit here today as a member of the Supreme Court of our country. I will do my best to honour this pristine mantle which has been conferred upon me. It is with dedication, determination and enthusiasm that I embark upon this journey. I must also confess to a sense of trepidation for I know the path ahead will be challenging and that I will be called upon to meet the high and relentlessly uncompromising standards expected of a Judge of the Supreme Court.
It has been an interesting and varied path which has brought me here — Student, Researcher, Banker, Lawyer and now Judge. It has been a voyage with its ups and downs, its blows and bouquets and, along the way, I have gathered much experience and a few skills. I hope that, all this will help me to become a good Judge, with time.
In this regard, may I state my conviction that, the Law will achieve its true purpose only if it is kept alive and vibrant.
Needless to emphasise, the Law should be certain and known and, thereby, make it possible to foresee, with some certainty, the determination which will result from a particular set of facts.
However, this requirement must not result in the stultification of the Law and make the Law an inert and rigid piece of machinery. A machine which mindlessly processes facts stuffed into a rigid frame of precedent and then spits out a conclusion dictated by a pre-keyed in formula. The Law and its administrators – namely, the Courts and the Legal Profession – are not an assembly line in a factory.
Instead, the Law, the courts and the legal profession have relevance and, indeed, cause to exist, only in relation to the country and its people whom they serve. Therefore, the courts and the legal profession must be acutely alive to the changing needs of our country and its people. They should respond appropriately, so as to ensure that the Law adapts and progresses and remains relevant to the interests of our country and its people and, where appropriate, the Law looks to the future and leads beneficial change.
In the words of Chief Justice Mirza Hameedullah Beg, the 15th Chief Justice of India, “Our concepts of Justice do not consist of a body of eternal, abstract, immutable, unchanging norms, but they will be found to be the products of an interchange of shifting pulls and forces which spring from changing social, political, cultural and economic conditions. New moral values, ultimately translated into Law, emerge in the process.”
I would add that, while necessary or beneficial changes and adaptations should never be shied away from, they should be made only after a careful study of the origins and underpinnings of the existing principle, rigorous testing to gauge whether there is, in fact, a need to change and a careful evaluation of the long term results, both direct and indirect.
As you know, it is a convention that a Judge who is being ceremonially welcomed will speak on a subject which he or she considers to be both timely and relevant and as I have come to this Court from the Bar, I think it sensible for me to speak briefly on the “Bench and Bar Relationship”.
During my years of practice as a counsel, I gathered much experience in the art and science of being a counsel. I thoroughly enjoyed the thrust and parry of adversarial advocacy, the tests of devising the correct strategy for each case and the absorbing challenge of conducting a trial, always being alive to and adjusting to, the ebbs and flows of each trial. Although it is perhaps not an assessment for me to make, I would like to think that, over a long period of time, I eventually became reasonably skilled at this art and science.
However, now I am at the very beginning of my new calling of a Judge and I am acutely aware of the simple and very true fact that, I have much to learn from my fellow judges. I will look to and rely on my brethren and sisters of this court, for their guidance and advice.
I also know that, it is the Bar which is best placed to assess the qualities of a judge and his strengths and weaknesses. The Bar knows what a judge may need to correct to improve the quality of the hearing given to the parties and the justice of the determination. Therefore, I will always welcome criticism from members of the Bar, be they seniors or juniors. May I add that, it would be nice if such criticism is constructive!
All this time, I have seen this relationship from the perspective of the Bar and with many years of practice, I know full well the view from that perspective – the good and the bad!
But, from now on, I will see the very same relationship from the perspective of the Bench.
I hope that, in these circumstances, I will, with time, be well placed to see the “Bench and Bar Relationship” in its totality and to better understand its design and its dynamics, its potential and its pitfalls.
The Bench and the Bar are the two pillars which uphold the temple of justice and a harmonious relationship between these two pillars is essential to ensure that the temple of justice remains constant and true and dispenses justice to those who come before it. Equally, a mutually supportive relationship between these two pillars is needed to ensure that the temple of justice has the indomitable strength required to withstand and repel any fierce elements which may attempt to assail it.
A harmonious “Bench and Bar Relationship” will have many factors and facets and I will refer briefly to what I believe to be the two most important – mutual honesty and mutual respect, which are both essential life forces for its existence.
Firstly, in order to maintain honesty between the Bench and the Bar, members of the Bar should keep in the forefront of their mind and conduct, the fact that they are officers of court and that, their first duty is to be honest to the court and assist the court to reach a correct determination. A deliberate breach of this duty should not be tolerated by either the Bench or the Bar. Equally, the Bench is duty bound to ensure that judges act with honesty and never allow personal likes, dislikes, partiality or prejudices to infect and corrupt the manner in which a judge treats any member of the Bar or his client. A departure from this standard should be equally condemned by both the Bench and the Bar.
Secondly, mutual respect and courtesy between the Bench and the Bar should and must be the norm. Breaches of courtesy and the absence of mutual respect breed dissension, disturbance and eventually destruction over time.
The Bar should always demonstrate due and proper respect for the dignity of judicial office. May I also add that, while a counsel must ensure that, his client’s cause is prosecuted and pursued with every diligence and perseverance which he can marshal, the time of court must not be wasted and lawyers should be well prepared for the day’s work and present their cases in an efficient and well-structured manner which avoids irrelevancies and repetition.
In the same way, the courts are duty bound to give counsel a fair, patient and courteous hearing, avoid unnecessary interruptions and allow counsel to present his case in the way he has prepared it. I may perhaps also add that, since many courts are burdened with very heavy workloads, efforts should continue to be made to work towards reaching a position where the day can be fully utilised for the hearing of cases and routine procedural matters or matters which cannot be dealt with on the day, are disposed of at an appropriate opportunity.
Sir Francis Bacon, Lord Chancellor of England from 1618 to 1621 warned that, “an overspeaking judge is no well-tuned cymbal” and I do not think I should fail to heed that warning.
Before concluding, I would like to express my thanks to those who have made and moulded me and guided and inspired me.
I am deeply grateful to my parents who raised me with love and affection and instilled in me their values, which I try to hold as my own. I am also grateful to my siblings and my entire family for their warm affection and constant support. I recall with much affection and gratitude my late uncle, Mr. Sidat Sri Nandalochana, Advocate, for the lessons he taught me in the law and life and for the wonderful friendship we had.
I am indebted to my alma mater, Royal College for the ideals and values it indelibly inculcated in me, and I would also like to thank my teachers at Royal College and my lecturers at the Faculty of Law.
It is with great respect and much affection that I place on record my deep gratitude to my late senior, Mr. B.J.Fernando, President’s Counsel, who trained me and taught me and who inspires me to this day.
I would like to thank the many seniors at the Bar who advised and helped me in my practice as a counsel, my friends at the Bar for the camaraderie and banter and the many juniors who afforded me the opportunity to engage in the most rewarding and enjoyable exercise of guiding and training the next generation of the Bar.
I thank, with respect, the many Judges before whom I appeared and who all afforded me a courteous and patient hearing.
Finally and most of all, my heartfelt thanks to my wife Amala, who is my strength and wise counsel and my children, Anandi, Sandeep and Sarani who are my staunch friends and most stringent critics, for their unwavering affection and support.
I thank you all for your presence here today.
Theruvan Saranai. Siyalu Devi Pihitai!
Prachathai journalist Taweesak Kerdpoka. Image via Facebook.
